THE BIG PICTURE: ARE YOU AN IMMIGRANT, OR A NON-IMMIGRANT?

Everyone in the United States who is not a U.S. citizen needs some kind of visa to be here legally. Visas are divided into two categories: temporary (nonimmigrant) and permanent (immigrant). The goal of anyone seeking permanent residence is to maintain a series of valid temporary visas while in the U.S. until he or she becomes eligible to apply for a permanent visa. Some people may qualify for a temporary visa and not permanent residence, while others may be able to get a permanent visa, but are not eligible for any temporary visa.

For additional information on visa categories that may apply to you, please contact us and request a consultation. Consultations cost $300 dollars initially, but that fee is credited toward your legal fees should you retain us within 7 days of your consultation. Extended consultations start at $400. Speak with an attorney to determine whether you need an extended consultation.

TEMPORARY VISAS

Temporary visas are lettered from A-V with numerous subcategories. And the list is growing. The F-1 and H-1B are well known, but many other options may exist for the college graduate. J-1 exchange visas may be available for work with universities or affiliated institutions. For example, the L-1 is a highly desirable visa for those who have worked abroad for a multi-national corporation for at least one year and then are transferred to the United States to a position at an affiliated company. And the E visa is for investors or certain employees of companies (large and small) engaged in international trade.

There are also visas for diplomats, representatives of NGOs, journalists, religious workers, fiances, government informants, athletes, and aliens of “extraordinary ability” in any field. Each visa has its own time limitations, processing times, rules on temporary intent and maintaining a foreign residence, restrictions on work authorization, and provisions for dependents.

PERMANENT VISAS

Unlike the myriad different temporary visas, which do not fit neatly into broad categories, permanent visas fall into four basic groups: special programs of Congress, family sponsor, employer sponsor, and asylum. Be sure to consider all categories that may apply to you, and realize that you may be able to apply in more than one category at a time. If you have a permanent visa, then you are given a permanent residency card. These are often called “green cards” because they were originally printed in green – now, they are mostly white.

SPECIAL PROGRAMS OF CONGRESS

First, there are special programs of Congress that benefit a particular group. These include periodic amnesty programs, and registry (a path to a green card for those who have been in the United States since January 14, 1972). The most widely available program is the Diversity Lottery, which is held every year. The goal of the program is to encourage immigration from countries that are underrepresented in the United States. Therefore, natives of over-represented countries such as Mexico, China, the Philippines and India are not eligible. Details of the lottery program appear on the State Department’s webpage. Although the application appears simple, be sure to follow the directions carefully. A winner does not automatically obtain a green card. Rather, winners then submit adjustment of status applications. Of the roughly 12 million entries last year, there were about 100,000 “winners,” of whom only about 50,000 received permanent residence.

FAMILY-SPONSORED GREEN CARD

Second, one can apply for permanent residence through a family sponsor. There are various categories of family relationships that range from spouse of a U.S. citizen (the fastest) to sibling of a U.S. citizen (the slowest, now taking well over 10 years and getting worse). In between, there are several categories, including children and spouses of permanent residents. The specific groups, and the waiting times involved, are listed each month on the State Department Visa Bulletin.

EMPLOYER-SPONSORED GREEN CARD

Third, an employer may sponsor an alien worker for permanent residence. In general, the employer must show the Department of Labor that it cannot find qualified U.S. workers for the position. Usually, this is done by advertising the job in a newspaper or journal. This process is called PERM Labor Certification. If qualified U.S. citizens apply, then the Labor Certification cannot be granted at that time. In some regions of the country, certain jobs are considered shortage occupations and require minimal advertising.

It is also possible to skip the Department of Labor in certain cases for high level researchers, those doing research “in the national interest” (such as medical or environmental research), doctors working in medically underserved areas, those with “extraordinary ” or “exceptional” ability in almost any field, registered nurses, physical therapists, investors and religious workers. These visas are still employment-based, but they do not require an employer sponsor, and are reserved for priority workers.

ASYLUM

Fourth, an alien can seek asylum in the United States if she has a “well-founded fear of persecution” in his or her home country. If you think you might qualify for asylum, seek the help of an immigration lawyer or USCIS approved nonprofit agency. Remember that fear of economic hardship or general criminal activity is not a basis for asylum – it must be fear of persecution by the government (or a group that the government is unable or unwilling to control) on account of one’s political views, race, ethnicity, social group, or religion.

Curran & Berger LLP

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Northampton, MA 01060

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Our firm assists individuals and institutions across the U.S. with their immigration needs.